S v QHAYISO 2017 (1) SACR 470 (ECB)


Evidence — Adequacy of proof — Accused — Court accepting that accused’s innocent explanation reasonably possibly true — Effect — There must, at same time, have been reasonable possibility that evidence implicating him false.

Trial — Presiding officer — Duties of — Inexperienced prosecutor — Duty of guidance.


The accused was charged in the magistrates’ court with two counts of assault with the intention to cause grievous bodily harm, arising from an incident in which he was alleged to have assaulted the complainants who had robbed him the previous day of his cellphone. The magistrate found the second complainant’s evidence unreliable and acquitted the accused on this count, but on the first count, although accepting that the accused had acted in self-defence, convicted him on the basis that he had exceeded the bounds thereof. On review,

Held, that the magistrate was not entitled to reject the accused’s defence that he had exceeded the bounds of self-defence, as that was never the case of the prosecution in the first place. The finding was also at odds with the court’s acceptance that there was a reasonable possibility that his innocent explanation was true, since this meant that there must, at the same time, have been a reasonable possibility that the evidence which implicated him might be false. The magistrate had accordingly wrongly convicted the accused after invoking a wrong test and the proceedings had to be set aside. (Paragraphs [17] and [30] at 475b–c and 482f–g.)

The record indicated that the magistrate had (i) in effect cross-examined the accused after he was cross-examined by the state; (ii) refused to allow him to show the scar from his stab wound to the court; (iii) neglected to allow the prosecutor or the accused’s attorney to question the accused in respect of the magistrate’s questions to the accused; and (iv) allowed the state to reopen its case without a formal application in order to allow a state witness to show his scar. In her explanation the magistrate blamed the latter on the inexperience of the prosecutor.

Held, further that the magistrate’s questions were hardly questions to get clarity on unclear issues, but constituted cross-examination, resulting in the magistrate descending into the arena. Her attempt to shift blame for an oversight on her part to the prosecutor, in respect of the reopening of the state case, was inappropriate. It remained the duty of magistrates to ensure that proper procedures were followed at all stages in a trial, and there was a duty on the magistrate in question to guide the inexperienced prosecutor where there were indications of his floundering.


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